The opinion
KAREN NELSON MOORE, Circuit Judge,
concurring in part and concurring in the result.
I agree with the majority’s conclusion that under the Abandoned Shipwreck Act of 1987 (“ASA”), 43 U.S.C. §§ 2101-2106 , a state may rely on circumstantial evidence or inference to prove that a shipwrecked vessel has been abandoned. This result is dictated by a fair reading of the admiralty law precedents, to which the Supreme Court referred us in California v. Deep Sea Research, 523 U.S. 491 , 118 S.Ct. 1464, 1473 , 149 L.Ed.2d 626 (1998), and by the legislative history. Moreover, it is clear that the state bears the burden of proving abandonment. Because I believe the standard of proof to be an open question, however, I do not concur in Part III.C. of the majority opinion.
Normally the party bearing the burden of persuasion as to an issue in a civil action must prove its point by a preponderance of the evidence. See 2 MoCoRMiCK on Evidence § 340 (John William Strong ed., 4th ed.1992). The question is whether Michigan should face a greater burden in establishing abandonment under the ASA. The majority believes that it should — that Michigan must prove abandonment with clear and convincing evidence. For several reasons I disagree.
First, there is surprisingly little case support for the “uniform rule” put forward by the majority. We are directed to a Fourth Circuit case that adopts the clear and convincing evidence standard and to several district court opinions that follow the Fourth Circuit. For additional support we must turn to earlier cases and treatises that speak not of a requirement of clear and convincing evidence but of a need for “strong proof’ of abandonment. See, e.g., Thomas J. Sohoenbaum, Admiralty and Maritime Law § 16-7, at 338 (2d ed.1994). To be sure, I can point to no conflicting cases that explicitly adopt a preponderance of the evidence standard for a showing of abandonment. It appears to me, however, that the precedent supporting deviation from the default standard of proof is meager.
Still, however, we must deal with the Supreme Court’s “clarification that the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law.” Deep Sea Research, 118 S.Ct. at 1473 . Although one could argue that “meaning” encompasses the standard of proof and that the precedent, albeit meager, favors something more than a preponderance of the evidence, I think it more likely that the Court invoked the admiralty law precedents only to define the substantive content of “abandonment.” In other words, we are directed to look to the cases to determine what kind of evidence can be used to show abandonment. I do not think that this statement obligates us to derive the standard of proof from the admiralty law precedents.
Finally and most importantly, it is clear from the statute and the legislative history that Congress wants the states to take title to abandoned shipwrecks embedded in state waters. Recognizing the conflicting demands placed on abandoned wrecks by divers, archaeologists, and salvors, Congress passed the ASA in order to vest title and management authority in the states. See H.R.Rep. No. 100-514(1) (1988), U.S. Code Cong. & Admin. News at 365. The statute directly transfers title to these shipwrecks to the states, and the legislative history indicates that abandonment may be shown by inference as well' as through express relinquishment of title. Permitting proof of abandonment by inference, of course, broadens the applicability of the statute and facilitates the achievement of Congress’s goals. Although neither the statute nor its history addresses the standard of proof applicable to the abandonment showing, adopting a clear and convincing evidence standard over the more typical preponderance of the evidence standard would run counter to the expressed intention of Congress to place *503 title to these abandoned shipwrecks in the hands of the states. Without clear direction to the contrary, I cannot endorse the adoption of a clear and convincing evidence standard.
Accordingly, I concur in the majority opinion with the exception of Part ÍII.C.